Judgment:
Dr. A.K. Mishra, Member (A)
1. The applicant who was a Jail Warder with the respondents was charge sheeted on 25.06.2008 for absenting himself from duty unauthorizedly without intimation or approval for different spells of time from 05.08.2007 till the date of issuance of the charge sheet. He submitted his reply on 30.07.2008 stating that his absence on different occasions was on medical ground and due to circumstances beyond his control. An inquiry was conducted ex-parte, where he did not participate in spite of many notices. The Inquiry Officer (IO) held him guilty of the charge. A copy of the inquiry report was given to him, but he chose to ignore it. The Disciplinary Authority (DA), in consideration of all the facts and circumstances of the case imposed the impugned penalty of removal from service. The applicant filed an appeal which was disposed of by the Appellate Authority (AA) in its order dated 26.08.2010 where the whole service record of the applicant was taken into consideration and it was held that the applicant did not mend his way in spite of many action taken against him in the past. The AA upheld the order of the DA; hence this O.A. with prayer for the following reliefs:-
“(a)Call for the records of the case.
Quash and set aside the letter Nos. F.II(831)/CJ/Vig./08/753-77 dated 11/5/2009 and F.9/77/2010/HG/4379 dated 26/8/2010 (Annexure-A1 Colly).
Direct the respondents to reinstate the applicant with all consequential benefits and further direct the respondents to pay his salary for the period February 2007 to May, 2009, which were not paid.
Award exemplary costs of the proceedings.”
2. The grounds taken by the applicant are as follows:-
There was violation of principles of natural justice in the inquiry proceedings.
The applicant had submitted leave applications supported by medical certificates for all the spells of his absence from duty; these were not considered by the DA as well as the AA.
His leave applications were never rejected and he was allowed to join when he resumed duties after his spells of absence.
3. We find from the inquiry report that a number of opportunities were given to the applicant to participate in the inquiry. Some of the notices issued in his permanent address were returned with endorsement that the applicant refused to accept the notices. There was no convincing reason why he could not participate in the inquiry proceedings where, as we see from the inquiry report, a number of adjournments were granted to enable the applicant to appear before the IO and participate in the inquiry. We find that there was sufficient ground to hold the inquiry ex-parte. A copy of the inquiry report was given to him but he chose not to refute the finding of the inquiry officer. He was again given the opportunity of personal hearings both by the DA and the AA. So there is nothing to support the allegation that there was any violation of principles of natural justice.
4. The second ground is mostly about his submission of applications for leave with supporting medical certificates. The respondents have stated that his leave applications and medical certificates were received after the period of absence was over and he reported to duty thereafter. The charge against him is that he went on many spells of absence without prior intimation and without approval of the competent authority. When asked pointedly whether there was any defence evidence in support of the contention that he had at times informed some of the employees of the jail, the learned counsel for the applicant failed to bring any such evidence to our notice. It is not his case that he had intimated in writing before absenting from duty, or during the period of absence.
4.1 We find from the documents filed by the applicant at Annexure A-7 Colly. that in most of the instances the applicant has filed medical certificates from private practitioners for a variety of ailments, i.e. (i) viral illness, (ii) backache, (iii) lumbago, (iv) LVA. In some instances he has taken the ground that he was required to attend to his mother for as many as 34 days as an attendant. His appeal petition was accompanied by a medical certificate where it is said that he was suffering from hyper-tension but there is no mention about the recording of his blood pressure. We do not find any prescription of medicine, nor any voucher in support of purchase of medicine. The private medical practitioners have merrily issued certificates about his indisposition and his subsequent fitness in a stereotype manner without any details about his medical condition. Neither the applicant has made any claim about reimbursement of the cost of medical treatment incurred by him. Nor is it his claim that he was even hospitalized.
4.2 Learned counsel for the respondents draws our attention to Rule-19 (5) which says that the submission of medical certificate by itself will not confer any right on the government servant to the leave claimed for. Rule-19(1)(i) says that for a non-gazetted government servant the medical certificate should be in Form-3 given by a doctor in the CGHS Dispensary in case the employee is the beneficiary of the Scheme or by an Authorized Medical Attendant if he is not a member of the Scheme.
4.3 The applicant has not mentioned whether he is a member of the CGHS Scheme or not. In either of the alternatives he had not submitted certificates from the CGHS Authority or the authorized medical attendant as defined in Rule 2 of Medical Attendance Rules, 1944. As per this definition, the authorized medical attendant has to be necessarily a Government Medical Officer. Though the applicant was an employee of Tihar Jail, Delhi, he had never visited any of the Government Hospitals at Delhi and has not produced even an OPD ticket. In any case, there is nothing to controvert the finding of the IO that he had not given any intimation about his absence, let alone obtained any approval of the competent authority.
5. The IO has specifically mentioned in his finding that specific memos were issued on 17.09.2007, 14.12.2007, 29.01.2008, 12.03.2008 and 12.05.2008 asking him to report for duty and submit his explanation, but he failed to do so.
6. Learned counsel for the applicant submits that an opportunity should be given to the applicant to mend his ways and the penalty of removal should considerate as disproportionate. This is not a ground taken in the OA. The law is well settled that the penalty imposed by the respondent authority in the facts and circumstances of each case should not be interfered in judicial review unless it is a case of manifest disproportionality as to shock a judicial conscience.
6.1 Let us see how the respondent authorities have dealt with the matter. The DA in the impugned order observes as follows:-
“Such prolonged unauthorized absence without requisite permission from the Competent Authority is indicative of the fact that the Warder has no commitment and sincerity to the Govt. duty and he has shown total contempt of the rules and regulations prescribed under CCS(CCA) Rules. Since the Prison is an high security and sensitive area and such prolonged absence by he prison official can lead to breach of security as it is impossible for the department to keep a watch on his activities during the absence period he may be involving/participating in unlawful activities which can prove to detrimental to the security of the Delhi Prisons. It is evident from the instant case that he is not interested in continuing in the government service and as such any further retention of such person in the active prison service is considered totally undesirable.”
6.2 The AA perused his service record and his observations are as follows:-
“The perusal of record also revealed that Sh. Manoj Kumar, ex-warder 713 had been penalized in the past on number of occasions like:-
1. Censure vide orders dated 3.11.2000 for his unauthorised absence on three occasions in the year 2000.
2. Placed under suspension w.e.f. 7.1.2004 to 13.7.2004 for absenting himself from duty and the period of suspension was treated as dies non.
3. Censure vide order dated 11.9.2006 for his absence on eight occasion during the year 2001.
4. Censure vide order dated 17.12.2007 for his misconduct of sleeping while on duty in the night between 27, 28th June 2007.
5. Reduction in time scale for pay with cumulative effect up to three stages for three years vide orders dated 17.7.2007 for unauthorised absence from duty during 2005 and 2006.
6. Reduction in time scale of pay with cumulative effect up to five stages for five years vide orders dated 5.2.2008 for unauthorised absence w.e.f. 26.12.2006.
7. Censure vide order dated 27.2.2008 for absence from duty w.e.f. 2.7.2007 to 31.7.2007.
Besides imposition of above penalties from time to time Sh. Manoj Kumar, ex-warder 713, did not mend his way and finally penalty of “Removal from Service” was imposed over him for his unauthorised absence for periods mentioned in Para -1 of the order.”
7. We find that applicant’s is a case of chronic absenteeism which did not improve even in spite of many penalties imposed on him from time to time. The order of the DA reveals that even after issuance of the charge sheet the applicant remained absent on many spells. His order states as follows:-
“Even The charge(d) official remained absent unauhorizedly from duty after issuance of chargesheet also i.e. w.e.f. 19.07.08 to 21.07.08 (03 days), 03.08.08 to 23.10.08 (82 days), 31.10.08 to 06.02.09 (99 days), 14.02.09 to 05.03.98 (20 days) ad 05.04.09 to till date.”
8. The applicant is a member of disciplined force who was detailed for duty in a high security prison and his conduct as has been proved through inquiry is not of such a nature as to inspire confidence in the mind of respondent authorities about his competence to discharge his duties well. In spite of many opportunities given in the past he had not reformed himself. Therefore, we do not consider it as a fit case for interference with the orders of the respondents. In the result, the O.A. is dismissed. No costs.